SC and the coronavirus crisis

Little hope, less trust

Print edition : May 22, 2020

Nurses and paramedical staff stage a protest against the shortage of PPE in Nadia district in West Bengal on April 18. Photo: PTI

By placing its trust on the Central government and thereby limiting the scope of its intervention, the Supreme Court continues to stonewall pleas for effective state action to mitigate the ill-effects of a prolonged lockdown on the downtrodden.

In its infamous judgment in A.D.M. Jabalpur vs Shivkant Shukla, delivered during the Emergency (1975-77), the Supreme Court upheld the President’s order suspending citizens’ access to courts for enforcement of the rule of law. Responding to the argument that the presidential order might empower the government to arbitrarily shoot any person, Justice Y.V. Chandrachud, who was part of the five-judge bench that pronounced the order, said: “Counsel after counsel expressed the fear that during the Emergency, the executive may whip and strip and starve the detenu and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of free India and I have a diamond-bright, diamond-hard hope that such things will never come to pass.”

Justice Beg, another judge on the bench, went even further in approving the emergency regime. He observed: “Furthermore, we understand that the care and concern bestowed by the state authorities upon the welfare of detenus who are well housed, well fed and well treated, is almost maternal.”

Little did the judges know then that their optimistic picture of Indian democracy, as reflected in their judgments, was at complete variance with the reality: there was a series of atrocities committed by the state during the Emergency.

The Supreme Court judges of today may not be as effusive as the bench that heard A.D.M. Jabalpur vs Shivkant Shukla in their defence of the executive. But the slide in that direction might have begun with the court heralding what advocate Prashant Bhushan described recently as “hope and trust jurisprudence”.

A defining facet of this is that the judiciary places its entire trust in the government and hopes it will mitigate people’s sufferings caused by the lockdown in due course, thus limiting the scope for its intervention.

Another facet is the general belief among judges that the judiciary and the executive should act in “harmony” in times of crisis or for “nation building”. The former Chief Justice of India (CJI), Ranjan Gogoi, invoked the “nation building” argument while defending his nomination to the Rajya Sabha within four months of his retirement.

The current CJI, S.A. Bobde, reportedly favours “harmony” during a crisis. “Money, men and material are with the executive, and it is for the executive to decide how these should be deployed and prioritised. Epidemic or any disaster can be best handled by the executive,” he told a virtual media conference on April 27, not caring to appear neutral at a time when petitions seeking the judiciary’s intervention to ensure the executive’s accountability during the pandemic are pending before courts.

Hope and trust jurisprudence

In Jerryl Banait vs Union of India, the Supreme Court bench comprising Justices N.V. Ramana, Sanjay Kishan Kaul and B.R. Gavai, heard a plea on April 27 seeking provision of personal protective equipment (PPE) to all health workers, including doctors, nurses, ward boys, and other medical and paramedical professionals working in “non-COVID treatment areas” as infection from asymptomatic patients was on the rise. Finding substance in the plea, the bench directed the Centre to “examine this issue and make necessary suggestions in the ‘rational use of PPE’ guidelines”. “Needless to say, that the other directions passed by this court on 8-4-2020 are directed to be continued,” the bench observed, disposing the writ petition and the pending applications in the matter. In similar cases in the past, the court had always kept them pending in order to “continuously monitor” the implementation of its interim directives.

Another instance of the court’s attitude to pleas seeking its intervention became evident on April 3. A bench consisting of Justices L. Nageswara Rao and Deepak Gupta heard Alakh Alok Srivastava vs Union of India in which a lawyer invoked the public interest litigation (PIL) petition jurisdiction to seek direction that governments requisition hotels, resorts, government guest houses and State bhavans, among other things, to house migrant workers. The bench recorded Solicitor General Tushar Mehta’s submission that State governments had been requisitioning private properties as and when required and so there was no basis for entertaining the plea.

On April 27, the bench comprising Justices Ramana, Kaul and Gavai disposed of the petition after hearing the petitioner and Tushar Mehta again. The bench chose to admit Tushar Mehta’s assurance that the Centre would examine the petitioner’s suggestions and take appropriate action.

Tushar Mehta said the directions issued by the court on March 31 in the case would continue. On March 31, another bench had observed that migrants should be dealt with in a humane manner and that State governments/Union Territories should endeavour to engage volunteers to supervise the welfare measures for migrants along with the police.

But the thrust of the March 31 order was to ensure compliance with the directions issued by the Central government under the Disaster Management Act, and a “direction” to the media to publish the official version on the status of the coronavirus disease, in order to prevent the spread of fake news.

Thus, when another bench disposed of the petition on April 27, there was no indication whether it took note of the concerns expressed over the March 31 order, which wrongly attributed the mass exodus of migrant workers to the spread of a non-existent fake news that the lockdown would last for three months. The bench also did not take note of the concern expressed by professional bodies of journalists that its “direction” to the media to publish the official version on coronavirus was gratuitous.

Similar was the fate of the petition filed by social activists Harsh Mander and Anjali Bhardwaj. They sought the court’s directions to the Centre and the State governments to ensure payment of minimum wages to all migrant workers within a week. On April 21, Prashant Bhushan, counsel for the petitioners, told the bench comprising Justices Ramana, Kaul and Gavai that thousands of migrant labourers housed in temporary shelters had no access to basic amenities. He also said that studies conducted by non-governmental organisations (NGOs) indicated that in several places government aid had not reached them.

The bench recorded Tushar Mehta’s submission that various measures were in place to address issues concerning migrant workers, that a helpline number had been provided to report issues concerning implementation on the ground and that whenever a complaint was received, the authorities attempted to address it immediately.

The bench observed: “Taking into consideration the material placed before us, we call upon the respondent, Union of India, to look into such material and take such steps as it finds fit to resolve the issues raised in the petition. With the above observation, the writ petition stands disposed of.”

Undaunted by the court’s insouciance, Prashant Bhushan decided to try his luck through another petition. It was filed on behalf of activists Jagdeep S. Chhokar and Gaurav Jain, who wanted the court to issue an order that migrants be allowed to go back to their hometowns and villages after necessary testing for COVID-19 and that the state make arrangements for their safe travel. On April 27, the Ramana-Kaul-Gavai bench called upon the Centre to place on record the proposed protocol, if any, for the movement of migrant workers between States in view of the reported discussions going on between State governments, and adjourned the hearing for a week.

On April 3, the bench comprising Justices L. Nageswara Rao and Deepak Gupta, in Justice for Rights Foundation and others vs Union of India, heard a plea seeking the court’s direction to the Centre to ensure fair and equitable distribution of surgical/N95 masks, hand sanitisers and liquid soap, and make such items available to the public at reasonable prices. Recording Tushar Mehta’s submission that the Centre has taken steps to ensure the availability of masks, sanitisers and liquid soaps at the minimum retail price, and deal with complaints from the public through a helpline, the bench disposed of the petition saying it “hoped and trusted” that the complaints would be addressed promptly.

Line of treatment

On April 30, the Ramana-Kaul-Gavai bench refused to order a change in the treatment guidelines for patients who were receiving a combination of the anti-malarial drug hydroxychloroquine (HCQ), and the antibiotic azithromycin (AZM) saying it was not an expert on the matter. It, however, agreed that the plea filed by the NGO, People for Better Treatment (PBT), should be considered as a representation to the Indian Council of Medical Research (ICMR). Kunal Saha, president of PBT, told the court that the combination of HCQ and AZM had side effects and that the American Heart Institute had issued warnings in this regard. The PIL claimed that the Union Health Ministry recommended this line of treatment primarily on the basis of anecdotal evidence and not as a specific therapy. The Health Ministry did not respond to a written representation, which was made before the filing of the PIL, voicing concerns over the line of treatment. The bench, however, pleaded helplessness in considering the plea that the Ministry should obtain “informed consent” from all COVID-19 patients for treatment with HCQ and AZM by bringing necessary changes in the treatment guidelines.

In Aayom Welfare Society vs Union of India, the same bench heard on April 30 a plea for providing ration to those who do not have ration cards and for universalisation of the public distribution system. “This being a policy issue, it is left open to the government of India and also the concerned States/Union Territories to consider such relief,” the bench observed before disposing of the petition. The bench directed the petitioners to serve a copy of the petition on the Solicitor General immediately.

The “hope and trust jurisprudence” guided the bench comprising the CJI Bobde and Justice Aniruddha Bose to refuse on April 30 to stay the Centre’s ambitious and expensive plan to redesign New Delhi’s central vista comprising Parliament and other government offices. The bench told the petitioner, Rajeev Suri, that it saw no urgency in considering the issue as no one was going to do anything in the COVID-19 situation. Tushar Mehta wondered what the problem was if a new Parliament building was built.

The petitioner’s concern was that the project would become irreversible with moves to grant clearance for it already being set in motion. His stand was vindicated when reports came suggesting that the Expert Appraisal Committee of the Union Ministry of Environment, Forest and Climate Change has recommended granting of green clearance for expansion and renovation of the existing Parliament building at an estimated cost of Rs.922 crore.

FIRs against lockdown ‘violation’

With the “hope and trust” jurisprudence guiding the Supreme Court’s approach during the pandemic, the fate of several PIL petitions pending before the court appears uncertain. Dr Vikram Singh, former Director General of Police, Uttar Pradesh, in his capacity as Chairman of the think tank, Centre for Accountability and Systematic Change (CASC), challenged the filing of first information reports (FIRs) under Section 188 (disobedience to order duly promulgated by public servant) of the Indian Penal Code (IPC) in cases of lockdown violations.

The Union Home Ministry has claimed in its lockdown guidelines that violations would be treated as an offence under Section 188. The offence is punishable with simple or rigorous imprisonment up to six months or a fine up to Rs.1,000 or both. Between March 23 and April 13, 848 FIRs had been filed under Section 188 in 50 police stations in New Delhi. In Uttar Pradesh, during the same period, 15,378 FIRs under Section 188 had been registered against 48,503 persons. Other States have reported registration of FIRs against thousands of alleged violators of the lockdown.

Vikram Singh submitted that the police action on an individual who was suffering due to the pandemic and the lack of information would have long-term ramifications and did not bode well for constitutional democracy. Burdening the criminal justice system with more cases during a pandemic was worse than the disease burden, he said.

The question before the court is whether the police can bypass the process of filing complaints before competent magistrates and resort to registration of FIRs for lockdown violations. Secondly, cognisance of an offence under Section 188 specifically excludes a police report.

Other PILs

Another petition seeks the court’s direction to the Centre to review the COVID-19 testing criteria to include all asymptomatic persons in areas affected by the outbreak. Yet another seeks issue of directions for repatriation of Indian women nurses and doctors, in the final stage of pregnancy, from Saudi Arabia. They had plans of returning to India in March and April but were unable to do so owing to cancellation of flights. A petition filed jointly by the National Alliance of Journalists, the Delhi Union of Journalists and the Brihanmumbai Union of Journalists, has challenged the action of several newspaper establishments that have laid off staff, reduced wages and sent employees on forced indefinite unpaid leave in the wake of the lockdown.

Pravasi Legal Cell, an NGO, has challenged the refusal of the airlines to refund the full amount collected for tickets following the cancellation of flights. Instead of providing full refund, the airlines are providing a credit shell, valid up to one year. This, the NGO contends, is against the norms approved by the Directorate General of Civil Aviation.

The Civil Aviation Requirement of May 2008 sets a limit of 30 working days for airlines to complete the refund process for tickets booked through travel agents and portals, the petition states. Besides, the office memorandum directing the airlines to provide full refund of amount paid to only those who booked tickets during the lockdown leaving out those who booked tickets before it has been challenged as discriminatory.

In Foundation for Media Professionals vs Union of India, the petitioner, a not-for-profit organisation, claimed that the lack of high-speed mobile Internet in Jammu and Kashmir was causing difficulties during the COVID-19 outbreak as patients, doctors and the public in general had no access to latest information, guidelines, advisories and restrictions relating to the pandemic. The Internet speed on mobile phones has been restricted to 2G, the slowest data download speed, in the Union Territory since March 26. Various public health practitioners, medical professionals and doctors have complained about the amount of time lost in downloading latest studies, protocols, manuals and advisories on treatment and management of COVID-19 in view of the 2G connection, the Foundation for Media Professionals told the Supreme Court.

The Jammu and Kashmir administration, however, said right to access the Internet was not a fundamental right and the degree of access for exercising free speech or for carrying on any trade or business could be curtailed. Protection of sovereignty and integrity of India and ensuring security of the country were sound grounds for reducing the Internet speed, the Union Territory’s administration said in an affidavit before the Supreme Court. The increase in Internet speed would lead to swift uploading and posting of provocative videos and other heavy data files, aimed at disturbing the peace in the region, inciting violence and abetting terror activities, the affidavit added. It claimed that the reaction time of law enforcement agencies to such situations decreased as a result.

The court had held in January that access to information and the freedom of trade and commerce via the Internet were fundamental rights. It, therefore, directed the Centre and the Jammu and Kashmir administration to periodically review the orders restricting Internet services. It, however, kept open the question whether access to Internet itself was a fundamental right. It appears that the Centre is now using this grey area to deny the rights to the people, even if the result is weakening the country’s fight against the pandemic. It is not clear whether the court will settle this issue in favour of declaring access to Internet a fundamental right in order to defeat the government’s ruse to pit national security against health concerns.

FIRs against Arnab Goswami

On April 24, the bench of Justices D.Y. Chandrachud and M.R. Shah granted interim protection from arrest for three weeks to Republic Television editor-in-chief, Arnab Goswami. In multiple FIRs filed across several States, Youth Congress activists have accused Arnab Goswami of defaming, in the course of a debate on television, Congress president Sonia Gandhi by alleging that she maintained “deliberate silence” on the Palghar incident (Maharashtra) in which two Hindu monks were allegedly lynched. The bench stayed all FIRs except the one filed in Nagpur, and transferred it to Mumbai, as the cause of action in all the FIRs was the same. The FIRs invoked several provisions in the IPC against Goswami for offences such as criminal defamation and causing communal disharmony. Goswami, on the other hand, relied on his fundamental right as a journalist to use his freedom of expression to ask critical questions and sought the quashing of FIRs on this ground.

The bench perhaps did the right thing by protecting Goswami from any coercive steps following the FIRs filed against him so that he could seek legal remedies such as anticipatory bail. However, the question was whether it would have heard any other person in a similar situation in the midst of a pandemic, considering it as urgent. According to reports, Goswami’s petition was filed after 8 p.m. on April 23 and within an hour, the court’s website was updated with information that it would be heard at 10.30 a.m. the following day.

Supreme Court advocate Reepak Kansal, in a letter to the Chief Justice of India, accused the court registry of picking and choosing cases filed by a few influential law firms and lawyers for early listing. He questioned the registry’s decision to list Goswami’s petition on April 24, without disclosing the reasons for its early listing and expeditious hearing. Justice Madan B. Lokur, former judge of the Supreme Court, , in his interview to The Wire, questioned the early listing of Goswami’s petition when there was no likelihood of his immediate arrest.

Prashant Bhushan’s Tweets

In Prashant Bhushan vs Jaydev Rajnikant Joshi, the Supreme Court intervened on May 1 to protect Prashant Bhushan from coercive action by the Gujarat Police in the FIR filed against him for his tweets on March 28. The bench of Justices Ashok Bhushan and Sanjiv Khanna issued notices to the complainant and the State government on Prashant Bhushan’s writ petition challenging the FIR filed against him at the police station at Bhaktinagar, Rajkot.

In his tweet, Prashant Bhushan had made critical comments about Union Minister Prakash Javadekar for posting a picture of himself watching the television serial “Ramayan” during the national lockdown saying: “As crores starve and walk hundreds of miles home due to the lockdown, our heartless Ministers celebrate consuming and feeding the opium of Ramayana and Mahabharata to the people!”.

Joshi complained that the tweet hurt his religious sentiments and sought action against Prashant Bhushan under Section 295A of the IPC (deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs). The FIR against Prashant Bhushan also invoked Section 505 (1)(b) of the IPC (intent to cause fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the state or public tranquillity).

The FIR alleged that Prashant Bhushan retweeted two tweets that were critical of the Centre’s decision to declare sports stadiums as jails for the purpose of housing migrant workers, and deduct one day’s salary of the doctors/staff of the All India Institute of Medical Sciences as a contribution to the Prime Minister’s fund. In his petition, Prashant Bhushan denied that his tweets/retweets hurt religious sentiments or could cause public mischief.

When the bench asked what was wrong if someone watched a TV programme, Prashant Bhushan’s counsel Dushyant Dave responded that the petition was not against the Minister watching “Ramayan”, but against the twist given to Prashant Bhushan’s tweets in the FIR, filed nearly a fortnight after the tweets were posted and circulated in social media. The belated filing of the FIR was nothing but an attempt to curb criticism of government policies/actions and was mala fide, vexatious, frivolous and an abuse of the process of law, Prashant Bhushan stated in his petition.

The prioritising of Goswami’s petition and the Gujarat government’s FIR against Prashant Bhushan for his tweets have raised genuine concerns. That the government and the court did not consider pandemic-related petitions filed on behalf of marginalised people as meriting urgent hearing and continuous monitoring was a matter of concern. How could the Centre and the apex court ignore the non-adversarial nature of PILs that could have provided an opportunity to nudge the executive to render justice to the voiceless.

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